Full Court Minute Books

Case M32/2022

Davis v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors;
DCM20 v. Secretary of Department of Home Affairs & Anor

Case No.

M32/2022 and S81/2022

Case Information

Lower Court Judgment

23/11/2021 Federal Court of Australia (Kenny, Besanko, Griffiths, Mortimer and Charlesworth JJ)

[2021] FCAFC 213

Catchwords

Constitutional law – Judicial review – Non-statutory executive action – Sections 61 and 64 of Constitution – Where s 351(1) of the Migration Act 1958 (Cth) ("Act") provided if Minister thinks it in public interest, Minister may substitute decision of Administrative Appeals Tribunal under s 349 of Act for decision more favourable to applicant – Where s 351(3) and s 351(7) provided power under s 351(1) be exercised by Minister personally and Minister under no duty to consider whether to exercise power – Where Minister issued guidelines in relation to power conferred by s 351 setting out circumstances in which Department of Home Affairs should refer requests – Where Departmental officers concluded requests for intervention failed to satisfy criteria for referral in guidelines – Whether decision of Departmental officer not to refer to request for Minister to exercise power conferred by s 351(1) amenable to judicial review – Whether decision of Departmental officer affected by legal unreasonableness – Whether remedies available.

Documents*

12/05/2022 Determination - Davis (SLA, Canberra by video connection)

12/05/2022 Determination - DCM20 (SLA, Canberra by video connection)

26/05/2022 Notices of appeal

30/06/2022 Written submissions (Appellant in M32/2022)

30/06/2022 Chronology (Appellant in M32/2022)

30/06/2022 Redacted written submissions (Appellant in S81/2022)

30/06/2022 Chronology (Appellant in S81/2022)

01/08/2022 Written submissions (First Respondent in M32/2022 and Attorney-General of the Commonwealth intervening)

01/08/2022 Written submissions (First Respondent in S81/2022 and Attorney-General of the Commonwealth intervening)

15/08/2022 Written submissions (Attorney-General for the State of New South Wales intervening in M32/2022)

15/08/2022 Written submissions (Attorney-General for the State of New South Wales intervening in S81/2022)

15/08/2022 Written submissions (Attorney-General for the State of South Australia intervening in M32/2022)

15/08/2022 Written submissions (Attorney-General for the State of South Australia intervening in S81/2022)

15/08/2022 Written submissions (Attorney-General for the State of Victoria intervening in M32/2022)

15/08/2022 Written submissions (Attorney-General for the State of Victoria intervening in S81/2022)

26/08/2022 Reply (Appellant in M32/2022)

26/08/2022 Reply (Appellant in S81/2022)

19/10/2022 Hearing (Full Court, Canberra) (Audio-visual recording)

19/10/2022 Outline of oral argument (Appellants in both matters)

19/10/2022 Outline of oral argument (First Respondents and Attorney-General of the Commonwealth intervening in both matters)

19/10/2022 Outline of oral argument (Attorney-General for the State of New South Wales intervening in M32/2022)

19/10/2022 Outline of oral argument (Attorney-General for the State of New South Wales intervening in S81/2022)

20/10/2022 Hearing (Full Court, Canberra) (Audio-visual recording)

20/10/2022 Outline of oral argument (Attorney-General for the State of South Australia intervening in both matters)

20/10/2022 Outline of oral argument (Attorney-General for the State of Victoria intervening in both matters)